The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-09-28

Yesterdays Supreme Court Decisions.
PROSECUTING ACKNOWLEDGEMENTS
TION
1898 Daniel Coleman vs. State. Jasper G.
c. Affirmed Mitchell. J.-Indictment for at.
tempted rape. Where a prosecutor injected
into his opening statement remarks about
the defendant not going on the witness
stand, and the court sustained objection
and exception by the other side to the course of
the prosecutor, in the absence of motion by
the defendant to set aside the submission and
discharge the jury there is no avaiao Die error in
refusing the motion for new trial on account
of the alleged misconduct of the prosecutor in
such opening statement. Il An instruction
that the jury should consider as circumstance
the fact that the prosecutrIx did not appear at
the trial. that no crime had been committed Is
not proper
STREET RA1LwAY-CoMMoN CARRIER-LIABIL-
ITY.
1874 Citizens Street Railway Company
Louisa B. Feviname. Marion S. C. Suit for
personal injuries. Affirmed. Niblack, IA
street-car company is common carrier. and
while it is insurer of the safety of its pas
sengers, it is bound to exercise the highest de-
gree of skill and foresight for the safe carriage
of such passengers; and the care and foresight
must extend not only to the running of its cars,
but also to the construction and repairs OF It's
track. For injuries resulting from a failure to
use such skill ana foresight the company is la
BILE. if such passenger was not guilty
terially contributing to produce such injuries.
| (2) A passenger is not guilty of negligence IN
| such passenger knew that the track was unsafe.
| If the car upon which the plaintiff was riding
| at the time of the accident was standing upon
| the track, and she and others were permitted to
| get on and deposit their fares this may be con-
| sidered sufficient evidence in absence OF EVIL
| dence to the contrary of an invitation by the
| company to her to take passage, and IL she
awaited herself of such invitation she can not be
| deemed guilty of negligence in so doing merely
! from the fact that she knew that the track was
| being replaced or repaired, and was in danger
Gus condition, for she had right to presume
| that the defendant would use due care to avoid
| danger.
JURISDICTION JUSTIcE-SURETYSHIP
1884 Lewis Knopf Eugene Morel. Wayne
| c. c. Reversed. Elliott. J.-Complaint that
| one Emerch, executed note to one Bull, for
| 800; that the appellee signed surety and that
| appellant Endorsed the note as co-surety OF ap-
pellee; that no part of the consideration was re-
ceived by any of the sureties: that JUDGMENT
| was recovered on the note before a justice
| against appellant. Enrich and appellee by de-
| fault; that Through mistake inadvertence'
the court found that appellant was surety for
| Emerich and plaintiff, and SC rendered Judg-
ment; that appellee paid the Judgment. Prayer,
| that appellant be compelled to contribute. The
judgment of the justice is bar to this suit I'M
| mine the question of suretyship. The
parties might have asked and obtained a de-
| cision of the question of suretyshlp. for
| the justice would, If he had obtained Jurlsdlc-
tion of the persons of the parties upon the ques-
ton of suretyship. nave had authority to adjudi-
cate that question. 1t is. however, essential
that jurisdiction OF the parties should extenn 20
| the question of suretyshlp between those Liable
| on the instrument sued on, inasmuch as juris-
| diction the complaint of the plaintiff does not
| in itself authorize adjudication upon the
| rights of the defendants among themselves. An
| indorser cannot have a judgment conclusively
establishing suretyship upon the complaint OF
the plaintiff on promissory note upon which,
from the position of his name on the instrument,
! he prima facie appears surety Without
bringing tho maker into court upon the question
of suretyship the indorser cannot. upon mere
| pof he hay hat
| clusively determined. The appellee was not
concluded by the judgment The complaint need